mwm@eris (Mike (My watch has windows) Meyer) (01/30/88)
[This is being posted far & wide, as I have been asked to do so. Followups have been pointed to comp.sys.misc.] Here, as promised, is a description of what you need to do to shareware and freeware so that the law will be on your side about what people do - and don't do - with it. I consider most of it is common sense, but "legal" and "common sense" seem to have little do with each other, so some people might find it usefull. <mike -------------------- document begins here -------------------- This document Copyright 1987 by Mike Meyer All Rights Reserved The whole of the document may be freely redistributed. Parts may be freely redistributed so long as the disclaimer and the list of the evils of shareware are included with those parts. The following presents some simple guidelines for what should - and shouldn't - be present in a shareware product so that the authors may be able to use the law to extract money from people who use, but do not pay for, their product. There is also a discussion of things you might and might not want to include in freeware. These guidelines are based on a study of the copyright laws, and discussions with lawyers. As is usual for software, the laws are still unclear, and there has not been a precedent covering what is and isn't correct. The following disclaimer is needed for that, as well as to cover for my own fallability. Disclaimer: These guidelines not guaranteed to be correct. Follow them at your own risk. When in doubt, consult a lawyer. You'll pay for it, but you have some hope of compensation should you get bad advice. I believe implicitly that knowledge should be shared, and I possess knowledge that it seems many will find useful. Therefore, I'm going to give guidelines on what to do to shareware products so that you have a hope of extracting funds from non-registered users in a court of law. However, I'm going to insist you listen to the things I consider evil about shareware, and ask that you consider making your package publicly available instead of shareware. Among the evils of shareware are: 1) It violates the hacker ethic. 2) It uses channels of distribution originally intended for freeware, without compensation to or permission of the people who run those channels. 3) It uses intimidation to coerce money from people. 4) It entices them to break the law. You are also going to have to listen to my lecture on what public domain really means. Why don't we start by defining that? Public domain, contrary to an apparently popular believe, means that anyone who has a copy may do whatever they wish with that copy. Including put their name and copyright on it, and sell it as a commercial product. By placing something in the public domain, you've given it to whoever wants it to do whatever they wish with it. Next obvious question: How do you place something in the public domain? Well, the easiest and fastest way is to publish something with the words "This is in the public domain" prominently displayed. Doing that negates any copyright notice you may have on it. The second way is to publish something without putting a valid copyright notice on it. This isn't as fast, as there are provisions in the law allowing for the accidental publication of things that should have had a copyright, but don't. Note that a statement "this is in the public domain, not for commercial use" is self-contradictory. The document in question is in the public domain, and available for commercial use. As an aside, in the context of shareware and freeware, "publish" means making available to others - uploading to a BBS, posting to USENet, or sending to a software library would all constitute publishing. At this point, the first guideline should be obvious: Put a valid copyright notice where it will be seen. Of course, you need to know what a valid copyright notice is. The one at the top of this document is valid. In general, you want, on a line by itself, the word "copyright", the year of publication, and your name. If you can produce it, the copyright symbol (circle-c) will do instead of the word "copyright". However, the ASCII-ism "(c)" is not a valid replacement for that. In most of the countries that agree to the international copyright laws, that is sufficient. Some, however, require you to explicitly state what rights you reserve. For that reason, the second line "All Rights Reserved" should be added if you plan, or expect, distribution outside the United States. These should be placed where they will be seen. If you have a title screen, put them there. Near the beginning of any manual you provide is another good choice. Printing them on a standard output stream is a possibility, but will give filters headaches. To give those of you a who are considering doing the right thing and publishing your product as freeware instead of shareware some extra options, I'll point out that after the copyright notice you can place a notice allowing redistribution under specific conditions. A common thing to see here is "This code may be freely redistributed so long as it is not included as part of any commercial product" or words to that affect. The GNU copyright notice is probably the best example of this. They wished that anyone who wanted to use their software should be able to, yet that nobody be able to make money off it by selling it, that there not be multiple version, and that they not be held liable for it's correct operation. If you still want to make money off it, instead of donating it to the good of society, you need one more thing - a license agreement. This should be as explicit as possible. Asking for money doesn't do it - if you merely ask, you're begging. You have no legal right to expect money. So avoid the words "please," "donate," "grateful," and the like. The best thing to do is to have a specific license agreement that must be printed, signed and returned with a check. Then near the copyright notice put a notice stating something like "Use of this product without returning the license agreement and registration fee is a crime." Except, the more specific you can be, the better. Instead of just saying "Use", say "Use more than 5 times," or "Use for more than 2 weeks." Should the license agreement seem to much to add to the product, just place a notice like "Use of this product without registration by sending $# to <whoever you are> is a crime." Once again, be specific - give a number of trial uses, or the length of a trial period. So the second basic guideline is: Be as explicit and fascist as possible about licensing. I have purposefully left the description of a "shareware license agreement" off. It's up to the shareware authors to decide what they want to put there; I've described how you can get a good chance of actually having it enforced. I'd ask for a shareware author to contribute a sample, but that seems pointless. That's really all that's needed - a valid copyright, and explicit and fascist conditions on usage. While this doesn't guarantee that you'll be able to extract money in a court, it gives you the best chance possible without going through commercial channels. Of course, corrections to any of the suggestions above will be gratefully accepted. Suggested improvements in the document as a whole would also be appreciated. -------------------- document ends here -------------------- -- Kiss me with your mouth. Mike Meyer Your love is better than wine. mwm@berkeley.edu But wine is all I have. ucbvax!mwm Will your love ever be mine? mwm@ucbjade.BITNET
papa@pollux.usc.edu (Marco Papa) (01/31/88)
In accord to Mike copying restrictions: >The whole of the document may be freely redistributed. Parts may be >freely redistributed so long as the disclaimer and the list of the >evils of shareware are included with those parts. You will find the above at the end of my reply. After reading the message, I was kind of puzzled. Mike, a known "hater" of shareware, giving guidelines on how to protect shareware and help make money off it? Strange! But after reading the licensing notice he suggests including in the shareware program: >"Use of this product without returning the license agreement and registration >fee is a crime." and > Be as explicit and fascist as possible about licensing. I came to the conclusion that he just wants to have some stupid shareware author to exactly follow one of his "shareware evils": > 3) It uses intimidation to coerce money from people. But again, let's not process Mike's intentions (I apologize in advance, Mike, if I misinterpreted), and go to the details. >The guidelines are based on a study of the copyright laws, and discussions ] >with lawyers. As is usual for software, the laws are still unclear, and >there has not been a precedent covering what is and isn't correct. >The fact that there is no precedent I believe implicitly that knowledge >should be shared, and I possess knowledge that it seems many will find useful. Part of your document shows knowledge, part just shows guessing bordering on misinformation (my personal opinion, which I'll try to substantiate with my reply). >Therefore, I'm going to >give guidelines on what to do to shareware products so that you have a >hope of extracting funds from non-registered users in a court of law. >You are also going to have to listen to my lecture on what public >domain really means. Why don't we start by defining that? Well done run down on the public domain/copyrighted/restricted issues. >Note that a statement "this is in the public domain, not for >commercial use" is self-contradictory. The document in question is in >the public domain, and available for commercial use. I just downloaded two programs from comp.sources.amiga with that STUPID notice. Hey, you guys that wrote that. I can tell you right now that I feel free to do anything with it. If I find it useful I will use it in a commercial product of mine, and will definitely copyright the resulting code with MY name on it. And you won't be able to do anything about it! Got it! :-) >As an aside, in the context of shareware and freeware, "publish" means >making available to others - uploading to a BBS, posting to USENet, or >sending to a software library would all constitute publishing. This is very important. From that date the author has 3-months to register with the Copyright Office to be able to subsequently claim statutory and not just "actual" damages. > Of course, you need to know what a valid copyright notice is. All is well on this. If one wants more, get the "Circular R1 -- Copyright Basics" from the Copyright Office, Library of Congress, Washington, D.C. 20559. >I'll point out that after the copyright notice you can place >a notice allowing redistribution under specific conditions. A common >thing to see here is "This code may be freely redistributed so long as >it is not included as part of any commercial product" or words to that >affect. This is definitely enforceable by the courts (More at the end of my message). >If you still want to make money off it, instead of donating it to the >good of society, you need one more thing - a license agreement. Here is where the sticky part starts. The copyright issues are ended, and Mike goes into the "Licensing Agreements" issues, a MUCH different subject. >The best thing to do is to have a specific license agreement that must >be printed, signed and returned with a check. This is still OK. "Licensing Agreements" should be signed by BOTH parties that are included in the agreement. This is usually the case for mainframe and minicomputer software. BEFORE getting the software, the purchaser has to sign the agreement, and return it with the proper payment. With microcomputer software the story is different. Given the large quantities and the different distribution channels, almost all publishers now use the "Shrink-wrap licensing agreement". The agreement is either printed on the outside of the shrink-wrapped package or the diskettes are inside a sealed envelope. One has to PHYSICALLY break some type of seal to USE the program, and to break the seal, he/she MUST have read the licensing agreement. Most agreements say something like this: "Breaking the seal on the envelope indicates that you accept this agreement and will abide by it. If you do not agree with the license, return the complete software product to the dealer where purchased". Usual agreements require an limited amount of backupus (if any) and use on a limited number (usually 1) of cpus at any one time. Note that the "Shrink-Wrap Licensing Agreement" has never been tried in courts, and therefore it is not clear whether it will stand or not. Moreover, not being connected with any Federal law, each state could decide in his/her own way. >Then near the copyright >notice put a notice stating something like "Use of this product >without returning the license agreement and registration fee is a >crime." >Should the license agreement seem to much to add to the product, just >place a notice like "Use of this product without registration by >sending $# to <whoever you are> is a crime." Once again, be specific - >give a number of trial uses, or the length of a trial period. This is where Mike's arguments die. He suggests a kind of even looser "licensing agreement" that does not include the "break-seal or open-shrink-wrap" action. Note that the "shrink-wrap" agreement is based on the fact that one opens the seal AFTER having read the agreement, and BEFORE using the product. The breaking of the seal is also an undeniably PHYSICAL action. With shareware that is not possible, unless one can prove that whoever gets the software sees the "shareware license agreement" BEFORE downloading it from a BBS, getting it from a friend, or by other means. Even including the "shareware licensing agreement" in a LICENSE file on a BBS won't do any good, unless the sysop enforces the rule that you have to download the licence BEFORE you download the program; clearly unenforceable with current BBS software. Also including the LICENSE file as part of a library ARC file that contains the executable won't do any good, since NOBODY will be able to prove that I read the agremeent BEFORE I use the program. Thirdly, flashing the licensing agreement each time the program is started is also useless, since that is done AFTER you got the program, not BEFORE. Therefore, you are in NO obligation to follow it. Considering the questions on the legality of the "shrink-wrap" licensing agreement, ther is NO chance that the even looser "shareware agreement" that Mike is suggesting will help anybody to recover any money at all. Most shareware authors for the IBM PC have clearly understood this, and try to make their money by providing "extras" with the "registration" of the program, which usually includes a new BETTER version of the program and printed documentation (ZCOMM/Pro-Yam, PC-FILE, PC-TALK III are examples of this). Another possibility is "selling" technical support (I believe ButtonWare does this). >Of course, corrections to any of the suggestions above will be >gratefully accepted. Suggested improvements in the document as a whole >would also be appreciated. You've got them. My point is that your proposed "shareware license" is basically useless from a legal standpoint. And I did not even consider the enforceability of such an agreement. Going back to the Copyright issues, this is an area where laws are clearer and there are precedents. One issue, for example, concerns a variety of outlets that repackage "shareware", putting multiple programs on the same disk, and SELLING the result. If the shareware software is properly copyrighted and registered, and includes proper restrictions, one can easily sue these companies, stop them from distributing "illegally" your software, and possibly recover court-awarded damages. This has been done. Even if I do not agree with some of Mike's arguments, I do commend him for raising the issues. -- Marco Papa -------------- As requested, here they are: > Disclaimer: These guidelines not guaranteed to be correct. > Follow them at your own risk. > Among the evils of shareware are: > 1) It violates the hacker ethic. > 2) It uses channels of distribution originally > intended for freeware, without compensation to > or permission of the people who run those > channels. > 3) It uses intimidation to coerce money from people. > 4) It entices them to break the law.
keld@diku.dk (Keld J|rn Simonsen) (02/02/88)
Here is a more international view on copyrighting software, as I understand it. I hold a Danish master degree in legislate law, but I am no expert on copyrights. I once spoke to a Danish expert on the issue and this is what I remember from that talk. Usual disclaimers. Copyrighting in the USA is something special, as USA has not ratified the Berner convention, as most of the European countries have, and Canada has done it too. As software put one EUnet/Usenet is spread all over the network in a couple of days, you can consider it published in Berner convention countries, and thus international copyright laws apply to every single piece of software published on the net. According to the Berner convention, it is not neccesary to state "Copyright" etc on the work, if the "work" is of sufficient "height" with respect to originality, it automatically enjoys copyright protection. But it does improve your chances proving that it is your software if you have put a copyright notice on it. And putting a copyright notice is a good idea, if you also publish it in the USA. The Berner convention has no such thing as "public domain", and if you have put something in the public domain and later regret it, well you can do so in Berner convention countries. You are able to give rights away like saying "Copyright by Frobozz 1988. Permission to copy is granted as long as ...", so this is like discussed elsewhere. One special thing is that it is legal to copy any copyrighted material if this is for *private* use. This covers music played on the radio which is tapped on your tape recorder, and it also covers software which is published on the net and thus governed by copyright rules. Putting out sentences about "crime" is thus not fully true in Berner convention countries. Keld Simonsen, University of Copenhagen keld@diku.dk
mwm@eris (Mike (My watch has windows) Meyer) (02/02/88)
[I'm still trying to point followups to comp.sys.misc...]
In article <6606@oberon.USC.EDU> papa@pollux.usc.edu (Marco Papa) writes:
<After reading the message, I was kind of puzzled. Mike, a known "hater" of
<shareware, giving guidelines on how to protect shareware and help make
<money off it? Strange! But after reading the licensing notice he suggests
<including in the shareware program:
I expected that. That someone would share information with those who
oppose them is - by it's very nature - hard for people who like
shareware to understand.
<> Be as explicit and fascist as possible about licensing.
<
<I came to the conclusion that he just wants to have some stupid shareware
<author to exactly follow one of his "shareware evils":
<
<> 3) It uses intimidation to coerce money from people.
Sorry, but the first is things as I discover them to be. The latter is
true whether you use a fascist agreement or not. If you're fascist,
you use the law to intimidate people. If you're not fascist, you're
using the american work ethic to intimidate them.
<But again, let's not process Mike's intentions (I apologize in advance,
<Mike, if I misinterpreted), and go to the details.
Apologies accepted. I'd also like to apologize for letting my
political beliefs show up in the terminology. But that's as far as I
let them influence me.
Let's look at what happened: I said that shareware agreements were not
enforcable - making analogies to the unsolicited goods through the
mail, and shrinkwrap license agreements. So I consulted a lawyer.
The information is as I gave it earlier - until the laws are tested,
you can't really *insure* that you can get legal protection for your
shareware. Following the guidelines I posted gets you the best chance
of that. And yes, I asked the lawyer about the mail & shrinkwrap
analogies, and got told "they don't apply."
<>Should the license agreement seem to much to add to the product, just
<>place a notice like "Use of this product without registration by
<>sending $# to <whoever you are> is a crime." Once again, be specific -
<>give a number of trial uses, or the length of a trial period.
<
<This is where Mike's arguments die. He suggests a kind of even looser
<"licensing agreement" that does not include the "break-seal or
<open-shrink-wrap" action.
No, here's where I goofed. I should have pointed out that not
including a real license agreement seriously lessens your chance of
having the shareware agreement honored in a court of law. I didn't
mean to imply otherwise.
<Also including the LICENSE file as part of a library ARC file
<that contains the executable won't do any good, since NOBODY will be able
<to prove that I read the agremeent BEFORE I use the program.
There's a key point you seem to have missed - the license agreement
allows you to use the program without having to register. It provides
for a "trial period." Though you may not be able to collect damages in
that case, you can force the user to either register or stop using the
program.
Being fascist about the wording everywhere will improve those chances.
<Considering the questions on the legality of the "shrink-wrap" licensing
<agreement, ther is NO chance that the even looser "shareware agreement" that
<Mike is suggesting will help anybody to recover any money at all.
My lawyers disagrees with you.
<Most shareware authors for the IBM PC have clearly understood this, and
<try to make their money by providing "extras" with the "registration" of the
<program, which usually includes a new BETTER version of the program and printed
<documentation (ZCOMM/Pro-Yam, PC-FILE, PC-TALK III are examples of this).
<Another possibility is "selling" technical support (I believe ButtonWare
<does this).
That's indeed a good way to get *money* out of a shareware program.
But I wasn't covering that topic - I was talking about legal
enforcement. I haven't actually looked into good ways to get money
from shareware (topic is not of interest), I didn't feel it
appropriate to go into that.
<>Of course, corrections to any of the suggestions above will be
<>gratefully accepted. Suggested improvements in the document as a whole
<>would also be appreciated.
<
<You've got them. My point is that your proposed "shareware license" is
<basically useless from a legal standpoint. And I did not even consider the
<enforceability of such an agreement.
You've pointed out at least two problems - I need to make it clear
that this is untested in a court, and to state explicitly that not
having a real license agreement lessens the enforceability of the
shareware agreement.
Note: since Marco dropped the copyright notice (naughty, naughty), the
parts of the posting I had originally copyrighted that he posted are
now more trouble to copyright than it takes. They may be considered to
be in the public domain.
Thanx,
<mike
--
It's been a hard day's night, Mike Meyer
And I been working like a dog. mwm@berkeley.edu
It's been a hard day's night, ucbvax!mwm
I should be sleeping like a log. mwm@ucbjade.BITNETomh@nancy (Owen M. Hartnett) (02/07/88)
Regarding the comments on "shrink-wrap" license agreements.
The previous posters are correct in stating that such agreements have
never been tested in court. There are several good reasons why I believe
any such case that gets into court will have shrink-wrap thrown out on its ear.
*** Disclaimer ***
I am not a lawyer. This is not legal advice, only my conjecture on
what might happen to a hypothetical case concerning shrink-wrap.
1) When you go to a store and buy software, you essentially complete a
sales contract between the vendor and yourself. In the case of a store,
generally the vendor is not the party who has an interest in the license
agreement, meaning that the software publisher (or whoever holds the
license rights) is attempting to be a third party in this contract.
Unless the vendor specifically calls attention to the license agreement
before the sale, it is possible that the intended buyer did not read the
license agreement on the back. There are many reasons why this could be so,
i.e. the software could be in a display case or you may have bought by
mail order.) Unless provably stated otherwise at the point of sale, the
contract is between you and the storekeeper.
The only vendor I know of who has this covered correctly is APDA. When you
"Join" APDA (really you submit to the licensing arrangement), you sign a
statement that you will read the back of any software you buy and return
it if you do not agree with the wording. This may not be enough to
satisfy the courts, but it's better than most.
2) In the case of the "Break this seal and lose all your rights" type of
business, this seems to be the weakest type of licensing. When no
agreement is visible from the outside of the packaging, any internal
notice would be trying to enforce a condition of the sale after the sale has
taken place. In order to create a valid contract, (like a sales contract),
all terms of the contract must be known to all parties before the contract
is consummated. You can't throw in another condition after the sale has
taken place. Suppose the seal said: "Break this seal and you owe us another
ten dollars." or "Break this seal and you must vote Republican at the next
election." It's like buying a loaf of bread and when you get home, find
a band wrapped around it saying "By breaking this seal, you agree not to
give any slices of this bread to Owen Hartnett."
Any real lawyers care to comment?
Owen Hartnett
Brown University Computer Science
omh@cs.brown.edu.CSNET
omh%cs.brown.edu
{ihnp4,allegra}!brunix!omh
"Don't wait up for me tonight because I won't be home for a month."
-W.C. Fieldsdhesi@bsu-cs.UUCP (Rahul Dhesi) (02/09/88)
In article <22633@brunix.UUCP> omh@nancy.UUCP (Owen M. Hartnett) writes: >Any real lawyers care to comment? There's a problem with asking real lawyers. If they have studied the issue of so-called shrink-wrap license agreements, it's probably because they have a client who uses one. So they are unlikely to speak against them in public. -- Rahul Dhesi UUCP: <backbones>!{iuvax,pur-ee,uunet}!bsu-cs!dhesi
kraut@ut-emx.UUCP (Werner Uhrig) (02/14/88)
for those of you with a serious interest in an up-to-date analysis of the current legal situation, you may want to get hold of a copy of a publication put out by Micro Analyst Inc.: "SOFTWARE LEGAL ISSUES FOR MICROCOMPUTER USERS AND DEVELOPERS" It is being sold for $20 and can be ordered from Micro Analyst, P.O. Box 15003, Austin TX 78761, phone (512) 926-4527. I believe that the publication is an outgrowth of graduate research work done by the author under the guidence of a respected legal expert in the field of computer-related law here at the University of Texas (Professor Michael Kirk-Duggan). I am no lawyer myself and neither is the author, but I feel that the price is a worthwhile investment for anyone either writing or using software commercially. If you are writing software, it will prepare you to have shorter and more meaningful discussions with your lawyers; and if you use software in your business, it will help you understand better what your rights and liabilities really are. The Table of Contents includes sections on the following topics: - the rights of software owners (backing up software legally; employer liability) - laws affecting software users and developers (new legislation passed in 1986 and their limitations; state laws) - current court cases deciding the law (background and current cases) - information needed to market or purchase software (purchasing and publishing software - sale or license; legal protection; security) - protecting published software (copyright protection without filing; registering software; trade secret protection; contracts; patents, trademarks and service marks) - marketing or buying software abroad - Appendices include information on ADAPSO, a chronology and discussion of recent computer cases; copyright registration form and instructions. - a 3-page bibliography Disclaimer (or should I say "Claimer"?!): The author is a friend of mine but our only business relationship is that I am a satisfied customer of Micro Analyst Inc. <note: below follows a description of the book as taken from an adver- tising flyer from Micro Analyst> SOFTWARE LEGAL ISSUES FOR MICROCOMPUTER USERS AND DEVELOPERS ============================================================ (by Mary Herbst, Copyright August 1987) This book looks at legal issues of concern for both software users and developers. The scope is limited to microcomputer software and thus is targeted especially for them. Topics covered include the current state of legislation regulating the software industry, as well as recent court decisions. Licences, copyrights, patents, and the rights of both users and developers are discussed. The format of the book is general enough for anyone to understand while technically accurate so as to provide clear concise information. -- werner@rascal.ics.utexas.edu (prefered address) kraut@emx.cc.utexas.edu kraut@ut-emx.UUCP (or ...!ut-sally!ut-emx!kraut)